Section 630.1205(b)(1) states that an employee may elect to substitute annual or sick leave for unpaid leave under the FMLA, "consistent with current law and regulations governing the granting and use of annual and sick leave."  Three organizations believe the legislative history of the FMLA shows that Congress intended that employees would be entitled to substitute their accrued or accumulated sick leave for any or all of the 12 weeks of unpaid FMLA leave to care for a family member.  Other commenters recommended that unlimited sick leave be allowed for bonding following childbirth or adoption and for the care of a family member. 

Under 5 U.S.C. 6382(d), an employee may elect to substitute "accrued or accumulated annual or sick leave" for unpaid leave under the FMLA, "except that nothing in this subchapter shall require an employing agency to provide paid sick leave in any situation in which such employing agency would not normally provide any such paid leave."  On December 2, 1994, OPM issued final regulations on the use of sick leave for Federal employees  (59 FR 62266).  The final regulations expand the use of sick leave by permitting most full-time employees to use a total of up to 104 hours (13 workdays) of sick leave each leave year to provide care for a family member as a result of physical or mental illness; injury; pregnancy; childbirth; or medical, dental, or optical examination or treatment.  In addition, OPM issued interim and final regulations on the use of sick leave for adoption-related purposes (59 FR 62272 and 60 FR 26977).  Under  § 630.401(a)(6), sick leave may be used for purposes relating to the adoption of a child--e.g., appointments with adoption agencies, court proceedings, and required travel.  Sick leave may be granted for any period during which an adoptive parent is ordered or required by the adoption agency or by a court to be absent from work to care for the adopted child.  However, sick leave may not be used either by birth or adoptive parents who voluntarily choose to be absent from work to bond with a birth or adopted child. 

If an employee chooses to substitute paid sick leave for unpaid leave under the FMLA, he or she may do so, but only in those situations where the use of sick leave would otherwise be permitted by law or regulation.  OPM has addressed comments on the issue of unlimited substitution of sick leave for unpaid leave under the FMLA in its final sick leave regulations published on December 2, 1994 (59 FR 62266), and the final regulations on sick leave for adoption published on May 22, 1995 (60 FR 26977).  In addition, OPM agrees with DOL's assessment that the legislative history does not support the idea that Congress intended unlimited substitution of paid sick leave for unpaid leave under the FMLA.  (Also, see DOL's final regulations published on January 6, 1995 (60 FR 2180).)  There is nothing in the FMLA or its legislative history that would allow agencies to permit the use of paid sick leave for the care of a family member in any situation in which the agency would not otherwise permit the use of such paid sic leave.